Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 11266
 SECOND DIVISION Docket No. 11170
 2-NRPC-EW-187
 The Second Division consisted of the regular members and in
 addition Referee Raymond E. McAlpin when award was rendered.
 (International Brotherhood of Electrical Workers
 Parties to Dispute:
 (National Railroad Passenger Corporation

 Dispute: Claim of Employes:

 1. That under the current Agreement the National Railroad Passenger Corporation (Amtrak) improperly holds New Haven, CT Lineman G. Esposito from service as of December 16, 1983.

 2. That accordingly, the National Railroad Passenger Corporation be ordered to restore Lineman G. Esposito to service with seniority unimpaired and with all pay due him from the first day he was held out of service until the day he is returned to service, at the applicable Lineman rate of pay for each day he has been improperly held from service; and with all benefits due him under the group hospital and life insurance policies for the aforementioned period; and all railroad retirement benefits due him, including unemployment and sickness benefits for the aforementioned period; and all vacation and holiday benefits due him under the current vacation and holiday agreements for the aforementioned period; and all other benefits that would normally have accrued to him had he been working in the aforementioned period in order to make him whole.

 FINDINGS:
The Second Division of the Adjustment Board, upon the whole record and all the evidence, finds that:

 The carrier or carriers and the employe or employes involved in this dispute are respectively carrier and employes within the meaning of the Railway Labor Act as approved June 21, 1934.

 This Division of the Adjustment Board has jurisdiction over the dispute involved herein.

The Claimant, a Lineman in service with the Carrier since October 18, 1976, was injured while on duty on September 25, 1979. The Claimant returned to work for a short time during 1981 and was unable to perform all the duties of a Lineman. He ultimately filed a FELA complaint to recover damages from his permanent disability, and during 1983 was awarded by a jury $90,000 in
 Form 1 Award No. 11266
 Page 2 Docket No. 11170
 2-NRPC-EW-'87

 settlement of his Claim. Medical testimony and arguments made by the Claimant's attorney at the Hearing indicated to the jury that the Claimant was permanently disabled and would never be able to perform all of the duties that are required of Carrier Linemen. Shortly after the jury's award, the Claimant's physician reported that the Claimant was free of symptoms and could return to work. On October 13, 1983, the Carrier's Doctor Roth initially cleared the Claimant, but four days later rescinded his original diagnosis and reaffirmed this second diagnosis on December 16, 1983. The Organization requested, on January 9, 1984, an examination by a neutral doctor. However, on January 25, 1984, the Claimant's own physician, Dr. Kaplan, would not certify the Claimant for climbing poles. On February 23, 1984, the Organization's request was denied. During August of 1984, the Claimant again asked for a return to duty physical and was again denied this opportunity.

 The Organization claimed a violation of Rules 21 and 22. The Rules are quoted below:


































Form 1 Award No. 11266
 Page 3 Docket No. 11170
 2-NRPC-EW-'87
 (b) When employees are removed from their posi
 tions because they are no longer physically able to
 perform the duties thereof, they shall be notified
 in writing the specific medical reasons for such
 removal. If the employees dispute the medical
 findings, they or their representative shall, with
 in 15 calendar days, request an examination by an
 impartial medical doctor, not an employee of the
 Company, selected jointly by the Company appointed
 doctor and the employee's doctor and the case will
 be disposed of on the basis of his findings. Costs
 for such impartial doctor shall be equally divided
 by the Company and the employee.
 (c) Employees returned to service or returned to
 their positions on the basis of the decision of the
 impartial doctor will be made whole for all wages
 lost due to the disqualification, less any outside
 earnings, with all rights unimpaired."

 The Organization stated that under these Rules the Claimant has a right to a Third Party impartial doctor to review his status. The Organization argued the Carrier's physician was unduly influenced and the Claimant was not given a proper examination. The Organization noted that the settlement of the disability Claim did not require the Claimant to give up his seniority. The Claimant is on a medical leave of absence. Finally, the Organization argued that the procedural objection raised by the Carrier was not argued until the second level and therefore should not be considered by the Board.

 The Carrier argued the Claim was not handled in the usual manner in that it was presented to the Assistant Division Engineer rather than the Division Engineer as required. The Carrier's main argument concerned that of estoppel. As was noted above, the Claimant and his physicians testified at his disability Hearing that the Claimant was permanently injured and could never return to full duty. This obviously entered into the jury's deliberations and resulted in a $90,000 award to the Claimant. The Carrier stated that Rules 21 and 22 do not apply in that Rule 21 gives no right to return to duty after a physical disqualification, and Rule 22 only applies to the Carrier's removal of an individual, and this individual removed himself.

 Upon complete review of the evidence, the Board finds the procedural argument raised by the Carrier is not persuasive, and therefore the Board will proceed on the merits of this case. Obviously, the major argument left to the Carrier is one of estoppel. Is the Claimant precluded from claiming a recovery after having pleaded that he was permanently disabled? There are many awards involving incidents that are exactly on point in this case in the First, Second and Third Divisions; in Public Law Boards, and in the Courts. The Rulings are extremely consistent. That is, a Claimant who claims a permanent disability is estopped from claiming the contrary in a subsequent matter. The Board finds that this is not a disciplinary case, and notwithstanding the Carrier physician's original certification to return to work on October 13, 1983, the Board finds that under the principle of estoppel, this Claim shall be denied.
 Form 1 Award No. 11266
 Page 4 Docket No. 11170
 2-NRPC-EW-'87
 A W A R D law




Attest:
        Nancy J ver - Executive Secretary


Dated at Chicago, Illinois, this 20th day of May 1987.

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